Dec 30, 2012 11:42am
trademarks: Tarzan and John Carter
I read this and the outcome may effect IA and PD works.
"An interesting new item has popped up in the news and that is the lawsuit which has been filed by the Edgar Rice Burroughs estate against comic book publisher Dynamite Comics, publisher of many licensed properties in comic book form including a number of old standards such as Zorro, the Lone Ranger and the Green Hornet. Their charge is that Dynamite's new comic books WARLORD OF MARS and LORD OF THE JUNGLE, which are adapted from John Carter of Mars and Tarzan stories, respectively, are trademark infringements and therefore damaging to the property of their estate.
Well . . .
As I see things:
1) Neither the trademarked words "Tarzan" nor "John Carter" appear on the covers of these comics
2) The stories between the covers are based on public domain material (Any John Carter or Tarzan books, not to mention any other books at all published before 1923 are public domain)
3) The Burroughs estate is acting out of desperation to try to hold onto something which has already slipped out of its hands and therefore it has no case, because it's explicitly stated in regard to trademarks that unlike copyrights, which are black or white, yes or no situations, trademarks can be weakened by the amount of public domain material their umbrella covers. In other words, if all but a handful of Sherlock Holmes stories are public domain, a trademark filed on that character's name would hold little water.
The documents the Burroughs estate has filed are actually readable online and they seem to suggest that the content of the comics infringes upon their trademark rights. Well, content is covered not by trademark, but by copyright, isn't it? If a trademarked character name could not be used in content of a publication, wouldn't that mean DC comics wouldn't be allowed to call Captain Marvel by his name within the comics in which he appears (which must be called SHAZAM or something else, because Captain Marvel, the trademark, was scooped up by and is the property of Marvel Comics)? Wouldn't that mean no character in any other book or comic book could ever be named John Carter, or, say, even Thor?
I am very much hoping to see the Burroughs estate, which has for years set lawyers upon practically anyone creating any sort of story or movie featuring any guy in a loincloth, lose this case and that it will become an example of how the public domain is supposed to work. Copyright is not supposed to be eternal and I'd be happy to see alternate versions of Tarzan created by whoever wants to give a spin to a story about the character.
Films featuring Solomon Kane and even Conan have been made in England, where copyright length is based not on the date of a copyright being filed, but on the year of the death of the author, because those properties are public domain there. I've seen KANE and it's a pretty great movie which couldn't have been made without that variation in the law that allowed it to be created at least in that country. The Burroughs clan can still rake in a good amount of cash from the sale of licensed Tarzan and John Carter action figures -- I think -- though I'm not sure in that a trademark has to be USED to be maintained, and I'm not aware that the Burroughs estate has published featuring either character in quite a long time.
At any rate this will be a very interesting test case which should settle a lot of questions related to other characters such as Zorro, Fu Manchu, Captain Marvel, and Sherlock Holmes, all of whom also have initial story appearances which are in the public domain. The Zorro people will tell you they "own Zorro." Do they really? Or do they just have the right to use the 5 letters Z O R R O as a brand name for material they've trademarked it in relation to? (Which you have to do, and pay extra for, one thing at a time, because a trademark is only a trademark for one sort of product, such as dolls, books, or bedsheets per TM -- this is why there can be such a thing as Peter Pan peanut butter.) Can a character . . . who is FICTIONAL and therefore NOT REAL . . . actually be "owned?"
I say no. Because you cannot own something which is not real! Only existing content still covered by copyright which might feature that character can be construed as actual "intellectual property." The Burroughs estate can, by continuing to pay for various trademarks, retain the use or right to license those trademarks for use on products by secondary agencies, but the minute TARZAN OF THE APES went public domain, lost their exclusive rights to the content of that story or secondary use of it. " copied from Serialsquadron website